The High Court declined to declare that an Egyptian applicant for refugee status had a right to remain in Ireland while pursuing a review of a refused application to re-enter the asylum process. Mr Justice Mac Eochaidh said the right applied while the Minister considered the application, but did not extend to the period for seeking a review of the refusal.
The judicial review proceedings began in December 2016 amid efforts to prevent the applicant’s deportation. On 8 December, while he was detained pending removal under a deportation order, his solicitors applied under section 17(7) of the Refugee Act 1996 for permission to re-enter the asylum process. The court granted leave to seek a declaration and an interim injunction restraining deportation.
The Minister refused the section 17(7) application the following day. The judge said the original requests for protection while that application was pending had therefore become moot. The remaining issue was whether the right to remain under Article 7 of the EU Procedures Directive continued during the period in which the applicant could seek a review of the refusal.
The judge accepted that a person had a right to remain while a section 17(7) application was being considered. But, relying on the earlier High Court decision in S.H.M. v Minister for Justice, he held that Article 7 covered the first-instance decision process, including a re-application, and did not create a right to remain during an appeal or review. The applicant had 28 days under the law cited in the judgment to seek a review, but had not commenced one.
The judge said the applicant could have sought an injunction from the court while preparing a challenge to the refusal. He recorded that the applicant declined invitations to make such an application, relying instead on the claimed automatic right to remain. The court refused to make the declaration or any other order sought on that basis. The judgment does not determine any challenge to the refusal of the section 17(7) application or grant relief against the deportation order.